About 55 percent to 60 percent of the litigants who file appeals with the 7th Circuit represent themselves without lawyers. Very few pro se litigants are provided the opportunity to argue their cases in court. The 7th Circuit rules on most of those cases based on the briefs....

Posner expressed awareness that his retirement "will greatly increase the burden on the existing judges." There are 11 seats on the 7th Circuit Court, and now 4 of them are vacant. One has been vacant for 7 years. And the judges who remain on the court are — as Posner puts it -- "old (one is about to turn 91!)."

" There are 11 seats on the 7th Circuit Court, and now 4 of them are vacant. One has been vacant for 7 years. And the judges who remain on the court are — as Posner puts it "old (one is about to turn 91!)."

Okay, I'm not a lawyer, I don't know the legal industry/system, but I got one big question:

How is this possible?

Does becoming a judge on the 7th Circuit carry a curse like the Tomb of Tutenkamen? Have lawyers taken vows of personal humility? "Awwww, not me. I wouldn't make a good judge."

First, how do you know they're all litigants? Perhaps many are defending themselves against others who are suing them. Either way, we must assume they are acting pro se because they simply can't afford to hire attorneys. If we impede citizens from appearing in court pro se, doesn't this effectively bar them from seeking remedies in the court system if they have (or believe they have) been wronged, or from defending themselves against suits by others?

I'm certainly not in favor of more lawsuits, but there are cases where they are necessary or cannot be avoided. Obviously, having an attorney as one's representative in court is almost always the better choice, but it can be ruinously expensive, and those who go to court without attorneys must be assumed to doing so only out of penury and desperate necessity.

If we impede citizens from appearing in court pro se, doesn't this effectively bar them from seeking remedies in the court system if they have (or believe they have) been wronged, or from defending themselves against suits by others?

If they've been wronged and they've got a case, they can probably get representation on contingency. But nobody gets defended on contingency. The idea you don't even get your day in court if you're not part of the guild is pretty distasteful.

The more I learn about the federal court system, the less it resembles a functioning court system. Secret trials, 98% of cases pled out, poor defendants literally not getting their day in court... it's like the only reason you'd want to be a judge is to make laws.

Unlike some, I assume the reason people want to be represented pro se is not because they're poor, but because no lawyer will take their case. Don't forget that a lot of what Posner says is a lie. Because he's a Dick.

In civil matters, it is rare for a litigant to sue a poor defendant, because that violates the first rule you learn in law school, which is "don't sue poor people".

The exception is when the poor (or at least not wealthy) person has insurance. In which case you are effectively suing the insurance carrier, and the insurance carrier will fund the defense (or write a check to settle).

Criminal law is a different matter - there, if you are facing a real custodial sentence, you will get legal aid. It won't be Dershowitz, but it will be a lawyer.

So most of these pro se folks are likely litigants - some of whom probably have real grievances. And many of whom are bughouse nuts (based on my experience as a clerk).

"In the sea of liberal judges appointed since 1994, a period in which the courts have been stacked hard left...."

?????

Where is this "hard-left"(sic) judicial "sea" of which you dream? And even if certain judges do swing left, they are compelled by the laws to mete out (too often too cruel) prefabricated sentence. Judges have lost much of their ability to "judge," the ability to fit the punishment to the crime (or the criminal) and more often must simply rubber stamp legal penalties that have been made compulsory, such as the heinous "three strikes you're out laws," or the "Rockefeller Drug Laws" in New York state.

Most appellate litigation deals with technicalities, often pretty arcane ones. A pro se appellant is unlikely to be able to present a successful argument without expert assistance. To the extent that we really want to help poor people who may have suffered a legal wrong, we might better focus on trying to expand programs that offer legal assistance to the indigent, rather than wasting judicial resources by hearing oral arguments from uncounceled litigants.

Mr. Majestyk said...Most of those appearing pro se in the Seventh Circuit are prisoners or folks claiming they were discriminated against. At least that was the case 25 years ago when I was a staff attorney there.

Exactly. Prisoner pro se appeals have been such an epidemic, Congress passed a bipartisan Prison Litigation Reform Act (PLRA) in 1996. With narrow Republican majorities in both houses of Congress; signed into law by President Clinton.

And as usual, federal courts keep right on meddling with prison administration, chipping away at the Act.

Sometimes, pro se civil litigants have what are (or could be) meritorious claims. In such cases, if the clerks and judges are paying attention, the court will usually ask an attorney to volunteer to represent the party -- a lawyer's presentation of the argument usually helps the court determine if the claim is truly a good one. One such case I had in the Seventh Circuit involved the intersection of prisoner civil rights claims under 42 U.S.C 1983 and habeas corpus law. I actually worked with Posner to help develop the Seventh Circuit's approach to such cases. Unlike most other judges, Posner drafts his own opinions and relies on clerks and staff attorneys to do legal research. The case went to the Supreme Court, which reached the same end result, but it relied on a different rationale.

About 55 percent to 60 percent of the litigants who file appeals with the 7th Circuit represent themselves without lawyers

And about 99 percent of those are prisoner habeas cases -- and many of those repeat claims -- or they are frivolous nuisance suits claiming that serving a slice of white bread instead of wheat is abuse. Many of these guys have nothing better to do with long sentences.

From my experience as a district court clerk, the vast majority of pro se cases are without merit. Many are serial prisoners' rights cases or habeas cases brought by prisoners with large amounts of time nothing else to do. As others have pointed out, the few that have merit often have counsel appointed by the court. Others are frivolous social security disability or ERISA benefits claims. Successful claims in these areas are rewarded by attorneys' fees, so the pro se cases are typically baseless. Do some meritorious cases slip through the cracks? Absolutely. But the vast majority are wasting the courts' time.

And I am calling b.s. on this being Posner's reason for retiring. There is something else going on, whether it be medical or otherwise.

On one hand, the biggest problem the American system of jurisprudence faces is the temporal factor - it is utterly and completely unsuited to dealing with things that happened yesterday. Clearest example - the gaming of California energy 'deregulation' some years back. When money is transmitted digitally, once it's gone, it's gone. Court action three years later can't pull it back from the ether.

On the other hand, if you're going to enable pro se litigants you've got a training process, and that takes time. Far more time than many have. And the process will be opposed with great energy by those who see pecuniary gain in doing so.

As a retired lawyer, let me say that I have often been astounded at how the cases seem to veer so wide of the mark that the decision is made without understanding the problem. For example, in a recent case involving a condominium that was destroyed by Hurricane Ike, one owner is seeking damages that ultimately would be paid by the other owners. Ridiculous...a common peril faced by all owners should not find one owner preferred over the others. Yet...following case law and the statutes make it possible. A good look at it from t he common sense standpoint would have had the case thrown out at the beginning, avoiding a lot of wasted court time and litigants' money. Also the patent forum-shopping (recently curbed) that became rampant. Common sense tells you that something is wrong when the outcome of the case depends almost entirely on which judges hear them.